Green Criminology and an International Law Against Ecocide: Using Strict Liability and Superior Responsibility to Prevent State and Corporate Denial of Environmental Harms

2022 ◽  
pp. 387-408
Author(s):  
Olivia Hasler
Keyword(s):  
International Law ◽  
Strict Liability ◽  
Green Criminology ◽  
Superior Responsibility

Disentangling ‘Effective Control’ Test for the Purpose of Attribution of the Conduct of un Peacekeepers to the States and the United Nations

2017 ◽  
Vol 86 (1) ◽  
pp. 30-67 ◽  
Author(s):  
Natalia Perova
Keyword(s):  
United Nations ◽  
International Law ◽  
Effective Control ◽  
International Court ◽  
The World ◽  
The United Nations ◽  
Unlawful Conduct ◽  
International Law Commission ◽  
Superior Responsibility ◽  
Law Commission

Despite the efforts of the United Nations (un), the world continues to hear news about un peacekeepers committing crimes in the state where they are deployed. One of the reasons is that the responsibility of the troop-contributing states for the conduct of their peacekeepers is not sufficiently recognised. In order to address the issue, this article advocates for ‘effective control’ to be interpreted as a material ability of a national contingent commander (for troop-contributing states) or un Force Commander (for the un) to prevent particular conduct (criminal act). Although representing a minority of academic views, this approach derives from superior responsibility, the International Court of Justice’s jurisprudence, is supported by the International Law Commission and in line with the un’s position and practice. Following this interpretation, the article concludes that in many instances unlawful conduct of peacekeepers will be attributed to the troop-contributing states and not only to the un.

Part V Financial Wrongdoing and Private International Law, 14 Money Had and Received

2017 ◽  
Author(s):  
Douglas Zachary ◽  
Bodnar Andrew
Keyword(s):  
International Law ◽  
Common Law ◽  
Strict Liability ◽  
Banking System ◽  
Private International Law ◽  
International Banking ◽  
Unjust Enrichment ◽  
The Common ◽  
Financial Wrongdoing

This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.

Ch.Two General Principles

2020 ◽  
Author(s):  
Werle Gerhard ◽  
Jeßberger Florian
Keyword(s):  
General Theory ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Superior Responsibility ◽  
Individual Criminal Responsibility

This chapter focuses on the general principles of international criminal law. It first develops a general theory of crimes under international law by considering the concept of crimes under international law as well as the context of organised violence. The structure of crimes under international law is also explored. Next, the chapter studies the material and mental elements of crimes under international law. Individual criminal responsibility and superior responsibility are also discussed, as are the grounds for excluding criminal responsibility. Next, the chapter covers inchoate crimes, omissions within the context of the ICC Statute, immunity, the multiplicity of offences, and finally, the requirements for prosecution.

Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law

2005 ◽  
Vol 18 (4) ◽  
pp. 795-828 ◽  
Author(s):  
NATALIE L. REID
Keyword(s):  
International Law ◽  
Theoretical Basis ◽  
International System ◽  
Practical Method ◽  
Individual Responsibility ◽  
Missing Link ◽  
Legal Rules ◽  
Conflict Situations ◽  
Or Groups ◽  
Superior Responsibility

Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.

Unravelling the Confusion Concerning Successor Superior Responsibility in the ICTY Jurisprudence

2010 ◽  
Vol 23 (1) ◽  
pp. 105-135 ◽  
Author(s):  
BARRIE SANDER
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Clear Distinction ◽  
Customary International Law ◽  
Legal Concepts ◽  
Superior Responsibility ◽  
Proper Interpretation

AbstractThe recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.

Individual Criminal Responsibility in International Law

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Legal Doctrine ◽  
International Criminal Tribunals ◽  
Phases Of Development ◽  
Superior Responsibility ◽  
Individual Criminal Responsibility

This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable. By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 27 Restrictions on Justifications Related to Due Obedience, Superior Responsibility, and Official Status

2018 ◽  
Author(s):  
du Plessis Max
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
Historical Background ◽  
International Crimes ◽  
Functional Immunity ◽  
The Right ◽  
Superior Responsibility ◽  
Official Status

Principle 27 deals with restrictions on justifications related to the doctrines of due obedience, superior responsibility, and official status. The defence of due obedience (or superior orders) is premised on the notion that orders must be obeyed and that subordinates often have little or no discretion to refuse to abide by orders of their superiors. The doctrine of command responsibility (or superior criminal responsibility), a creation of international criminal law, states that superiors are criminally liable if they fail to prevent or punish the crimes committed by their subordinates. Under international law in respect to international crimes, immunities are divided into functional immunity (immunity ratione materiae) and personal immunity (immunity ratione personae). This chapter first provides a contextual and historical background on Principle 27 before discussing its theoretical framework and how the doctrines of due obedience, superior responsibility, and official status have been applied in practice.

The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence

2001 ◽  
Vol 14 (3) ◽  
pp. 617-634
Author(s):  
Kirsten M.F. Keith
Keyword(s):  
International Law ◽  
Criminal Responsibility ◽  
Customary Law ◽  
Mens Rea ◽  
Customary International Law ◽  
Definition Of ◽  
Superior Responsibility

The Statute of the ICTY incorporates the customary international law principle of superior responsibility. Where a superior knew or had reason to know that subordinates were about to commit or committed a crime, he/she is under an obligation to take preventative or punitive measures against subordinates. The mens rea, or knowledge, of a superior is pivotal in determining his/her criminal responsibility. However, despite the customary law status of the principle of Superior Responsibility, the definition and standard of mens rea applied has varied. The ICTY Trial Chambers in the Čelebići and Blaškić cases reached opposite findings on the definition of the term “had reason to know” under customary law. The Appeals Chamber has rendered its definition of mens rea. However, the standard applied appears inconsistent with the principle of Superior Responsibility.

The Contemporary Law of Superior Responsibility

1999 ◽  
Vol 93 (3) ◽  
pp. 573-595 ◽  
Author(s):  
Ilias Bantekas
Keyword(s):  
United States ◽  
World War I ◽  
Supreme Court ◽  
International Law ◽  
World War ◽  
Military Commanders ◽  
The Hague ◽  
Civilian Authority ◽  
Superior Responsibility ◽  
Subsequent Failure

In the bloody aftermath of World War I it became apparent that those in military or civilian authority provided a cornerstone for the good conduct of those under their command, and hence should carry some liability for their actions. A Commission established by the allies after World War I to assess the responsibility of German officers rightly assumed that a combination of power to intervene, knowledge of crimes and subsequent failure to act should render those concerned liable for the crimes of their subordinates. Despite United States and Japanese dissent, die latter arguing that highranking officials could not be held personally accountable under international law in accordance with the abstention theory of responsibility, trials instituted at the German Supreme Court in Leipzig recognized the existence of concrete duties pertaining to military commanders. Undoubtedly, two precursors to the Leipzig proceedings, the Hague Conventions IV (1907) and X (1907) created affirmative command duties in relation to the conduct of subordinate persons, establishing the doctrine of “command responsibility.”

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